Care and protection cases

Introduction

Care and protection cases are about the safety, welfare and well-being of children

These cases are not disagreements between family members about these issues. Rather, they are disagreements between Family and Community Services (the State) and the family (even though there are usually family disagreements within these matters too).

Care and protection cases are heard by a Magistrate in the Children’s Court.

Each parent and child will have their own lawyer for the case.

To start these cases, Family and Community Services make a care application to the Children’s Court. A care application will state:

why Family and Community Services thinks that the child is in need of care and protection and

the care orders that Family and Community Services want the Court to make

The court will make an interim order about what will happen to the child while the court case is going on – that is where the child will live, and who will have parental responsibility for the child until the final orders are made.

In need of care and protection

To show that the child is in is need of care and protection, Family and Community Services has to give the court evidence that something has happened in the family that either:

has caused or

is causing or

might cause future harm to the child

The parent has the chance to put their side of the story to the court.

If it is decided that the child is in need of care and protection, final care orders will be made.

Making final orders

Family and Community Services, the parents and the child (through their lawyer) will all give evidence to the court about what final care orders they want in order to protect the safety, welfare and well-being of the child.

At this stage, the parent can tell the court what they have done to fix the problems that have led to Family and Community Services becoming involved and care orders being commenced.

The final care orders made in care and protection matters can be very serious.

An order can be made to remove a child from their birth parent and put them in long term foster care.

If a child is removed from their parents, final orders will say how much contact a parent can have with their child.

Other orders the court can make are:

Orders about who will have parental responsibility for a child

Orders about supervision

Orders that a person with parental responsibility cannot do certain things

Where parents can get help

If a child was recently removed:

Parents will need a lawyer to represent them in court. IDRS can give legal advice, refer the parent to a specialised care and protection lawyer and in a very limited number of cases, represent the parent in court.

If a lawyer is not arranged before the matter goes to court, a duty solicitor will mention the matter the first time it is in court. If eligible for Legal Aid, a parent can keep instructing the solicitor he or she instructed the first time in court or choose another lawyer through the Legal Aid Care and Protection Panel. Parents not eligible for Legal Aid will have to arrange a private lawyer – Legal Aid can provide a list of Care and Protection lawyers. If a parent is Aboriginal they may be eligible for a lawyer through Aboriginal Legal Services.

If the court case is over and the parent is unhappy with the final care order:

A parent can appeal the decision in the District Court. An appeal must be made within 28 days of the final order being made. The parent should talk to their lawyer or IDRS about making an appeal.

To change or cancel the final care order:

A parent can apply to the Children’s Court to have the order changed or cancelled. They will have to show that there has been a significant change in the circumstances that led to the removal. This means that the problems that led to the child being removed, are no longer there.

Even if the parent can show this change, the Court will only change or cancel the final care order if it thinks this will be in the best interests of the child.

A parent should talk to their lawyer or the care and protection lawyer at IDRS about making an application to change or cancel a final order.

A child has not been removed but the parent has been reported to Family and Community Services:

Non-legal support may be useful in this situation.

An advocate may help the parent understand what is happening and help them work with Family and Community Services. An advocate can give support to the parent.